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The curious case of the Lokpal Bill

to the international statistic that alleged corruption in India, domestic statistic responded with the proud tradition of denial Photograph: (Others)

Bangalore, Karnataka, India Apr 28, 2017, 01.05 PM (IST) Ashok G.V.

 

The Gross Domestic Product of India, for the year 2015 was worth a mind-boggling 2088.80 billion US dollars. This figure, by itself, hardly paints India as a Third World country. Yet, we fare poorly on the Human Development Index which is a measure of literacy, life expectancy and the general standard of living. In other words, for all the wealth India generates, a substantial portion of its population remains poor without access to healthcare, education and nutrition. 

 

When confronted with this seemingly paradoxical statistic, the average Indian would have one response, “corruption”. She

is right too; for in the 2016 corruption perception index published by transparency international, India ranks 79 and is well behind countries with much poorer GDP figures such as Senegal, Burkina Faso and Uruguay.

 

On the other hand, the 2010 report of PRS Legislative Research disclosed that only 6 per cent of all the complaints of corruption led to a prosecution. Going by the CAG report of 2013, only 33 per cent of the cases prosecuted led to a conviction. In other words, for every 100 complaints of corruption received, 6 cases end up being prosecuted. Out of the 6 cases prosecuted, less than 2 cases

culminate into the conviction of the corrupt official. According to domestic statistics, therefore, at least 94 per cent of the officials named in complaints of corruption are prima facie innocent. 

 

Evidently, to the international statistic that alleged corruption, domestic statistic responded with the proud tradition of denial.

It is a conundrum that the Indian Parliament sought to address by passing the Lokpal and Lokayuktas Act, 2013 (“Act”).  An autonomous body was set up to inquire into and prosecute complaints of corruption in India.  

 

 However, despite the lapse of 3 years since its passing, the Lokpal has not been constituted and no appointment has been made to it.

The most recent judgment in Common Causes v. the Union of India dealt with the question of the appointment of the Lokpal. Central to the appointment of the Lokpal is a body known as the Selection Committee which comprises, among other people, the leader

of the Opposition from the House of the People. The abysmal performance of the Congress and, for that matter, a lot of other parties has prevented them from having the numbers necessary to qualify as an Opposition. 

 

Thus, the government’s stand has been that such a truncated selection committee without a leader of the Opposition, cannot constitute the search committee under Section 4 (3) of the Act and

without a search committee, it is not possible to identify and recommend the names of individuals for the Lokpal.

 

Curiously enough, on an analogous question involving allied legislations like the Right to Information Act, 2005, the Solicitor General in his 2014 opinion was of the view that the absence of a leader of the Opposition would not vitiate the working

of the law itself. Thus, unsurprisingly, the Apex Court held that the Act in its present form is eminently workable. Moreover, it held that even if the selection committee lacked a leader of the Opposition in the Lok Sabha, such a truncated selection committee can, by virtue of Section 4 (2), recommend the names for appointment to

the Lokpal. 

 

However Section 4 (2) does not extend to the formation of the search committee by the selection committee. Despite this omission in the law, the Apex Court sticks to its position. In fact, by virtue of this judgment, a truncated selection committee can constitute a search committee, even if it is without a leader of the opposition party from the House of the people. The law will, however, not explicitly validate the appointments.  

 

With the recent verdict, therefore, the argument of the state against the constitution of the search committee has been outright rejected. There is little to stall the Lokpal appointment process now. 

 

The Apex Court has a long and proud tradition of paving the way to eliminate corruption. Yet, these frequent directions and the public interest litigations they are predicated upon raise two serious questions: a) Why does the court have to be troubled every time for a solution and b) Why successive governments are content with waiting for court orders to address problems surrounding anti-corruption laws and their enforcement?

 

The proposed amendments to the Act itself have become controversial in what is perceived as efforts to dilute the powers of the Lokpal, and will no doubt provoke further litigations. This trend that India has seen over the ages must change, and governments must make an effort to ensure that solutions are delivered before the

courts are called upon to intervene. The BJP’s rise to power was partly aided by the anti-incumbency trend inspired by the numerous corruption scandals that emerged during the rule of the Congress Party.

 

Though the BJP’s stand on the Lokpal has largely been casual and lackadaisical so far, the judgment of the Apex Court is a call to action for the ruling party. BJP should distinguish itself from its predecessors by taking a proactive and pragmatic approach to an anti-corruption body like the Lokpal. One would hope that going forward, the courts of the country will actually prosecute cases of corruption rather than deal with public interest litigations on government apathy and inaction.

Ashok G.V.

Ashok G.V. is an advocate with Factum Law.

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